The Orphans Legacy, Part 2 · Chapter 19
CHAP. XIX. Touching the Executors Election to accept or refuſe the Executorſhip.
1. Of the Judges Power to affix the time for that Election; or in Caſe of the Executors refuſal what his Power is.If all the Executors write a Letter to the Ordinary, deſiring him to commit Adminiſtration, for that they cannot attend the Execution of the Executorſhip or the Will, it is ſuch a refuſal as that they cannot afterwards Adminiſter. Hill. 31 Eliz. B…wacorn verſ. Cartor. Moo. Rep. nu. 426.
2. In what Caſe a perſon may be compell'd to accept the Executorſhip, notwithſtanding his Judicial refuſal.
3. How one appointed Executor by the Will may Adminiſter, notwithſtanding his refuſal to Prove the ſame.
1. HE that is appointed Executor in a Will, may be ſummoned to appear before the Judge of the Juriſdiction, to accept or refuſe the Executorſhip. aBoic. Panor. & Bar. in C. Tua nos. de Teſta. & Plowd. in Caſ. int. Greisbr. & Fox.The time wherein he that is named Executor in the Teſtament, is to deliberate and determine Legat in Libertatem. de Execut. Teſta. & ibi. Jo. de Athon. verb. approb. Conſu.whether he will accept or refuſe the Executorſhip, is uncertain, and left to the diſcretion of the Judge, who hath uſed at his pleaſure, and when he will, not only within the year, but within a monethmonth or two to Cite him that is named Executor to accept or refuſe the Executorſhip; and upon the non-appearance or refuſal of ſuch Executor to Prove the Will, the Judge may commit Adminiſtration as of an Inteſtate. bBrook Abr. tit. Admin. nu. 32. & tit. Execut. nu. 49. 102. & 31 H. 8. cap. 5.And ſuch Adminiſtrators Power is effectual in Law, untill the Executor undertake the Executorſhip. cBald. in L. deberi. C. de Fidei Commiſſ. & Plowd. in Caſ. int. Greisbr. & Fox.For then the Judge may revoke ſuch Adminiſtration. dBroo. Abrid. tit. Admin. n. 33.But if the Judge knowing that there is a Will, grant Adminiſtration, not having firſt called the Executor to accept or refuſe the Executorſhip; the Executor when he ſhall have Proved the Will, may Sue ſuch Adminiſtrator in an Action of Theſpaſs; eAbridg. dez Caſ. tit. Adminiſt. nu. 2. fo. 183.Becauſe the Judge hath no power to grant Adminiſtration but in Caſe of Inteſtation, or that the perſons named Executors either will not or cannot be Executors.f21. H. 8. c. 5.
2. No man can be compell'd to accept the Executorſhip, gPanor. in C. Jo. de Teſt. Ext. nu. 3. & Oldend. de Execut. ult. vol. tit. 7. in fin.unleſs he hath already intermedled with the Teſtators Goods as Executor; hPlowd. in Caſ. inter Greisb. & Fox.for then it is too late for him to refuſe. iFitzh. Abrid. tit. Execut. n. 35.Yet if any Legacy be given him in the Will, wherein he is named Executor, he may then be compelled to accept the Executorſhip, or he ſhall loſe his Legacy. kGribal. Theſ. Com. Opin. verb. Tutor. & Rom. Conſil. 235.Yea, though he were of Kin or Allied to the Teſtator. lIbidem.Yet the Wife ſhall not loſe her Thirds, nor the Children their Filial Portions by refuſing the Executorſhip.mAuth. hoc amplius. C. de Fidei. Com. Novel. de haered. & Falcid. §. ſi quis autem. Cok. 9. 37. Fitzh. tit. Admin. 6. 11. Bro. tit. Adm. 32. Perk. Sect. 485. Dyer, 160. 21 Ed. 23.
3. Although where an Executor hath Adminiſtred, he cannot afterward refuſe, becauſe he hath thereby determined his Election; and although where there is an Executor and he refuſe, or many and all refuſe, the party is dead as Inteſtate, and Adminiſtration is to be committed with the Will annexed; yet in caſe there be divers Executors, viz. A. B. C. and A. only refuſe, and the Will be Proved by the other Two, there A. continueth an Executor, notwithſtanding his refuſal; nCoo. lib. 5. fol. 28.ſo as he may ſtill releaſe debts of the Teſtator, and debts owing by the Teſtator may be releaſed to him. o22 Ed. 3. 19. & 15 Ed. 3. 8.Yea, if Sute be to be had by or againſt the Executors, it ſhall not be in the Names of B. and C. only, but A. alſo muſt be Named as a Plaintiff or Defendant, or elſe the Action may be overthrown. p41 Ed. 3. fol. 22. & 21 Ed. 4. fol. 24.Yea, this Executor which refuſed may afterwards Adminiſter at his pleaſure, and intermeddle with the Goods as well as the others; but after their death he cannot ſo do; q42 El. Coke 9. fol. 36, 37.for then the Executor of him that Proved the Will is only to Adminiſter; and the others refuſal continuing to the death of his Co-Executor, his Power then died alſo with him; but ſo long as the one Co-Executor liveth that Proved the Will, the other, though he refuſed the Executorſhip before the Judge, may yet afterwards, ſo long as the other lives, Adminiſter the Goods, or Remit the Debts due to the Teſtator; rBro. tit. Ex. …. 38. Dyer fol. 160.And that Co-Executor that ſo Proved the Will, cannot hinder him, nor can he Recover againſt the perſons by him ſo releaſed.sBro. eod. tit. …. 37. & nu. 117. Vid. Part. 1. cap. 20. §. 6.
Treſpaſs. It was found by Verdict, That Sir Ralph Rowlet being poſſeſs'd of a Term, made his Laſt Will, and thereof made the Lord Keeper Bacon, Catlin Chief Juſtice, and others his Executors, Mich. 29, & 30 Eliz. C. B. Broker verſ. Charter. …. Rep. par. 3.and Deviſed the Term to the Lord Catlin, and died. All the Executors wrote a Letter to Dr. Dale, Judge of the Prerogative Court, That they could not intend the Execution of the Will, and deſired him to commit the Adminiſtration to Henry Goodyer, the next Kin of the Teſtator; The Adminiſtration was accordingly granted, but the Regiſter Entered the Cauſe, viz. For that the Executors did defer ſuſcipere onus Teſtamenti. After this, Catlin Entered upon the Land Deviſed to him, and granted it over; the doubt was whether this Grant were good: 1. Whether the Letter were a ſufficient Renunciation? 2. Whether (if they once refuſe) they may, after Adminiſtration granted, Adminiſter at their pleaſure? Dr. Ford declared to the Juſtices, That by the Civil Law a Renouncing may be as well by matter in Fact, as by a Judicial Act, and they may refuſe per parol, and Cited a Rule in the Civil Law, Non vult eſſe haeres, qui ad alium vult tranſferre haereditatem; and Haereditas eſt totum jus quod defunctus habuit. And to the ſecond matter he ſaid, Qui ſemel repudiaverit haereditatem, amplius haereditatem petere non poteſt; and Qui ſemel repudiaverit, ſhall not after be Executor, quia tranſit in contractum. And that Executors cannot refuſe for one time, but for ever; but they may pray time to Adviſe or Conſider of taking upon them the Executorſhip, and it ought to be granted; and in that Caſe the Ordinary is to grant in the mean time Letters ad Colligendum, &c. but is not to grant Adminiſtration. And for theſe Reaſons there being a refuſal, the Grant made after Adminiſtration committed, was void; and ſo was the Opinion of the Court.